Stereo Decisis

On this long overdue episode of the pod, Professor Hilary Young and Robert Danay discuss the apparent new trend in which judges in Canada have been creating new common law torts. Some of the cases discussed include:* Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (https://canlii.ca/t/jmpnf) in which Mandhane J. created the new tort of family violence;* Caplan v. Atas, 2021 ONSC 670 (https://canlii.ca/t/jcwcm) in which Corbett J. created the new tort of cyber harassment;* Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (https://canlii.ca/t/j5k5j), in which the Supreme Court of Canada declined to strike a claim rooted in the new tort of breaching customary international law;* Merrifield v. Canada (Attorney General), 2019 ONCA 205 (https://www.canlii.org/en/on/onca/doc/2019/2019onca205/2019onca205.html), in which the Ontario Court of Appeal rejected a new tort of harassment;* Crookes v. Newton, 2011 SCC 47 (https://canlii.ca/t/fngpv) in which the Supreme Court described the circumstances under which the republication of a hyperlink may be considered defamatory (and also cited Rob's paper called  “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation (https://www.canlii.org/en/commentary/doc/2011CanLIIDocs220#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA)” (2010), 56 McGill L.J. 1); and* Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (https://canlii.ca/t/1h7nd) (ON CA), in which the Ontario Court of Appeal found the fact that a defamatory statement was published on the internet increased the quantum of damages and vitiated the availability of the qualified privilege defence.In Obiter Dicta: * Hilary recommended "The World of Yousuf Karsh: A Private Essence (https://pier21.ca/world-yousuf-karsh-a-private-essence)" a photography exhibition at the Canadian Museum of Immigration at Pier 21 in Halifax, Nova Scotia; and* Rob recommended Ukrainian band DakhaBrakha's performance on NPR's Tiny Desk Concert Series (https://www.youtube.com/watch?v=hsNKSbTNd5I).If you have comments or questions you can find us on Twitter (https://twitter.com/stereodecisis?lang=en) or Facebook (https://www.facebook.com/stereodecisis/).

In this inaugural Stereo Decisis "Shorts" episode, we pay tribute to the legacy of Joseph Arvay, QC, who passed away on December 7, 2020 at the age of 71.

Cases of Arvay's mentioned in the episode include:

* Canada (Attorney General) v. Bedford, 2013 SCC 72 (http://canlii.ca/t/g2f56)

* Carter v. Canada (Attorney General), 2015 SCC 5 (http://canlii.ca/t/gg5z4)

* Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 4 (http://canlii.ca/t/fn9cf)

Donations in honour of Arvay's memory can be made to the Hope Centre (https://www.thehopecentre.net) in Welland, Ontario.

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In this episode of Stereo Decisis, Hilary Young and Robert Danay are joined by the former Dean of the University of Calgary's Faculty of Law, Patricia Hughes.

The discussion focuses on the appeal of R. v. Sears, 2019 ONCJ 104 (http://canlii.ca/t/hxqmt) in which James Sears and Leroy St. Germaine were convicted of wilful promotion of hatred contrary to s. 319 of the Criminal Code. The basis for their conviction was the publication of Your Ward News, a local periodical distributed in Toronto (and online), which contained messages that were found by the Court to promote hatred of Jewish people and women. On appeal, Mr. Sears suggested that his lawyer did not afford him competent representation (https://nationalpost.com/news/canada/your-ward-news-hate-appeal-underway-editor-argues-lawyer-refused-to-call-witnesses). The basis for this argument was the fact that Sears' lawyer had refused to adduce evidence and make arguments to the effect that the hateful messages in the impugned periodical did not violate the Criminal Code because they were true. In a recent article on Slaw.ca (http://www.slaw.ca/2020/11/17/making-the-hard-decisions-ethical-lawyering/), Patricia pointed out some of the ethical issues that arose for Sears' lawyer under such circumstances.

In obiter dicta, Patricia recommends the Marshal Guarnaccia detective novels by Magdalen Nabb, Hilary recommends the "Buy Nothing" facebook pages and Rob recommends chihuahua puppies as pets.

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On this episode of the podcast, Hilary Young and Robert Danay are joined by constitutional litigator and self-styled "Blackademic (https://twitter.com/JoshuaSealy)," Joshua Sealy-Harrington (https://powerlaw.ca/teams/joshua-sealy-harrington/). The discussion primarily centred on the recent decision of the Supreme Court of Canada in R. v. Chouhan, which was a constitutional challenge to Bill C-75, a law that removed the ability of an accused (or a prosecutor) to remove potential jurors peremptorily. This law was passed in the aftermath of Gerald Stanley's controversial acquittal in the murder of Colton Boushie (https://thecanadianencyclopedia.ca/en/article/gerald-stanley-and-colten-boushie-case), a 22-year old Indigenous man in Saskatchewan. Joshua represented the intervener BC Civil Liberties Association in Chouhan.

The discussion also touched on the recent decision of the Supreme Court of Canada in Fraser v. Canada (Attorney General), 2020 SCC 28 (http://canlii.ca/t/jb370), which was a constitutional challenge to an aspect of the RCMP's statutory pension scheme that disproportionately affected women. It was the first decision in which the Court found an unjustifiable breach of the right to equality in s. 15 of the Charter on the basis of "adverse impact" discrimination.

In obiter dicta, Hilary recommended the songs of Tom Lehrer, which the math professor/satirical musician recently released into the public domain (https://www.marketplace.org/2020/10/21/satirist-tom-lehrer-put-his-songs-into-public-domain/). Rob recommended the CBC show You Can't Ask That! (https://gem.cbc.ca/season/you-cant-ask-that/season-1/72c403c1-54c9-41c9-9608-e07f82bf4b84) and Joshua recommended The Alchemy of Race and Rights (https://www.hup.harvard.edu/catalog.php?isbn=9780674014718) by Patricia J. Williams.

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On this episode of Stereo Decisis, Oliver Pulleyblank (https://www.pulleyblank.ca/about-1), Hilary Young (https://www.unb.ca/faculty-staff/directory/law/young-hilary.html) and Robert Danay (https://www.linkedin.com/in/robert-danay-335127127/?originalSubdomain=ca)are joined by Angela Swan, who was recently described as "nothing short of a venerated celebrity in both Canadian contract law and the Canadian legal community at large. (https://historyproject.allard.ubc.ca/law-history-project/profile/angela-swan)"

Angela brings her decades of experience and expertise to discuss COVID-19 and contractual clauses such as force majeure and material adverse event/change. In so doing, she mentions Akorn, Inc. v. Fresenius Kabi AG - No. 2018-0300-JTL, 2018 Del. Ch. LEXIS 325 (Ch. Oct. 1, 2018) (https://courts.delaware.gov/Opinions/Download.aspx?id=279250), which is one of the only cases in which a court actually found that a material adverse change clause was properly invoked by a party to a contract.

In obiter dicta, Hilary recommends a podcast called My Dad Wrote a Porno (https://www.mydadwroteaporno.com/), Oliver recommends the Raven DeBriefs (https://raventrust.com/raven-briefings-a-podcast/) podcast and Rob recommends a Netflix documentary called Circus of Books (https://www.rottentomatoes.com/m/circus_of_books).

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On this episode of Stereo Decisis, Hilary Young (https://www.unb.ca/faculty-staff/directory/law/young-hilary.html), Robert Danay (https://www.linkedin.com/in/robert-danay-335127127/?originalSubdomain=ca) and Oliver Pulleyblank (https://www.pulleyblank.ca/about-1) are joined by Justice Lorne Sossin (https://www.law.utoronto.ca/faculty-staff/adjunct-visiting-faculty/lorne-sossin) of the Ontario Superior Court of Justice to discuss some of the challenges and opportunities that Canadian courts are navigating as a result of the COVID-19 pandemic. During the discussion, Rob mentions:

* A recent article by Chief Justice McLachlin on "Access to Justice in the Time of Social Distancing (https://www.thelawyersdaily.ca/articles/18386/access-to-justice-justice-in-the-time-of-social-distancing-beverley-mclachlin?spotlight=1)";

* A tweet (https://twitter.com/shannonnsalter/status/1250611984246030336) by Shannon Salter (Chair of the Civil Resolution Tribunal (https://civilresolutionbc.ca/)) about the need for affidavits to be commissioned by a lawyer/notary;

* The decision of the Supreme Court of Canada in R. v. N.S., 2012 SCC 72 (which concerned the right of witnesses to wear a niqab when testifying in criminal trials);

* The decision of Corbett J. setting the terms of a virtual Zoom proceeding in Ontario v. Ontario Association of Midwives, 2020 CanLII 25862 (ON SCDC); and

* The rebuke by a Florida judge of a lawyer who attended a virtual Zoom proceeding shirtless from bed (https://www.buzzfeednews.com/article/salvadorhernandez/lawyers-florida-zoom-court-shirtless-bed).

In Obiter Dicta, Justice Sossin recommends Man in the Red Coat by Julian Barnes and The Ghost Map (https://www.amazon.ca/Ghost-Map-Londons-Terrifying-Epidemic/dp/1594482691) by Steven Johnson (https://www.amazon.ca/Ghost-Map-Londons-Terrifying-Epidemic/dp/1594482691), Rob recommends the Dr. Henry Shoe by John Fluevog (https://www.fluevog.com/flueblog/john-fluevog-shoes-to-release-limited-edition-dr-henry-shoe-in-support-of-the-fight-against-covid-19/), Hilary recommends knitting while attending certain online meetings and Oliver recommends the "primitivist" music of John Fahey (https://g.co/kgs/BKMJQS).

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On this episode of Stereo Decisis, Robert Danay (https://twitter.com/robertdanay?lang=en), Oliver Pulleyblank (https://www.pulleyblank.ca/about-1) and Hilary Young (https://www.unb.ca/faculty-staff/directory/law/young-hilary.html) are joined by David Quayat (https://www.linkedin.com/in/david-quayat-b23178/?originalSubdomain=ca) to discuss the recent decision of the Supreme Court of Canada in Nevsun Resources Ltd. v. Araya, 2020 SCC 5. This case involves three former workers at a mine in Eritrea who launched a lawsuit in British Columbia seeking damages from a Canadian company that owned the mine. They claimed to have been subjected to torture, slavery and other human rights abuses at the mine and asserted that Nevsun was liable in tort based on breaches of customary human rights law. A majority of the Supreme Court of Canada allowed the lawsuit to proceed.

In Obiter Dicta, David recommends donating to a food bank, Hilary recommends The Oland Murder (https://www.cbc.ca/documentaries/the-oland-murder/the-oland-murder-1.5455982), a four part documentary on the murder of millionaire Richard Oland and the retrial of his son Dennis, Oliver recommends audio books and a recent album by Daniel Romano's Outfit (http://exclaim.ca/music/article/daniel_romanos_outfit-okay_wow) and Rob recommends The Road by Cormac McCarthy.

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On this, our first post-coronavirus pandemic episode, Hilary Young and Robert Danay are joined by Steven Penney, Professor of Law at the University of Alberta Faculty of Law, to discuss R v Brown, 2020 ABQB 166. This was a case that gained national attention (https://www.cbc.ca/news/canada/calgary/magic-mushrooms-matthew-brown-assault-defence-verdict-1.5483053), in which a young man with no history of violence, consumed alcohol and magic mushrooms and went on a naked rampage in which he broke into strangers' homes and committed a brutal assault, all of which he did not recall doing after the fact. The discussion touched on the defence of extreme intoxication automatism, the constitutionality of section 33.1 of the Criminal Code and more.

In obiter dicta, Steven recommended The Goodness Paradox (https://www.penguinrandomhouse.com/books/530240/the-goodness-paradox-by-richard-wrangham/) by Richard Wrangham, Hilary recommended another story involving magic mushroom fuelled naked criminality (https://www.cbc.ca/news/canada/new-brunswick/christian-michaud-charged-nudity-1.5489000), and Rob recommended a fantastic online criminal procedure lecture (https://twitter.com/alexchcarroll/status/1239990480927993856) by University of Arkansas Law School professor Alex Nunn.

On this episode of Stereo Decisis, Robert Danay and Oliver Pulleyblank are joined by Caroline Mandell, a legal writing coach, litigation consultant (https://www.mandellcoaching.com/) and former counsel to the Court of Appeal for Ontario to discuss the Supreme Court's landmark administrative law decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Caroline brings her particular expertise and perspective to explain Vavilov's anticipated effects on the scope and quality of reasons tendered by administrative decision-makers as well as some of the ways in which the decision might have set the bar higher for administrative decision-makers in this regard than that which is expected of judges themselves.

In Obiter Dicta, Oliver discusses The Neon Skyline (https://andyshauf.com/), a new album by Canadian singer songwriter Andy Shauf, Rob explains how he met his wife in high school and Caroline talks about the retirement of Justice Robert Sharpe and recommends his book, Good Judgment: Making Judicial Decisions (https://utorontopress.com/us/good-judgment-2 ) (2018, UofTPress).

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On this edition of stereo decisis, Hilary Young, Robert Danay and Oliver Pulleyblank discuss the recent decision of the Supreme Court of Canada in Kosoian v. Société de transport de Montréal, 2019 SCC 59, which involved a woman who won a decade long battle (https://montrealgazette.com/news/local-news/woman-arrested-for-not-using-metro-escalator-handrail-awarded-20000) for compensation after being wrongfully arrested for failing to hold the handrail on an escalator in a Laval metro station.

The crew also discussed a recent series (http://canlii.ca/t/j2x79>) of (http://canlii.ca/t/j2l2f) decisions (http://canlii.ca/t/j28lp) in the Federal Court of Appeal pertaining to the Trans Mountain Expansion Project (TMX).

In obiter dicta, Rob discussed the recent controversies over the conferral of graduate law degrees at UBC (https://www.cbc.ca/news/canada/british-columbia/peter-a-allard-school-of-law-ubc-name-on-degrees-1.5353708) without the name of the law school's benefactor, Peter A. Allard, and the use of the name Ludlow Hall at UNB Faculty of Law (https://www.cbc.ca/news/canada/new-brunswick/unb-ludlow-name-change-1.5363456).